On March 31, 2020, the Third Circuit Court of Appeals decided the matter of Petti v. Ocean County Board of Health, 2020 U.S. App. LEXIS 10082 (3d Cir. 2020). Plaintiff B. Janet Petti was an accountant for the Ocean County Board of Health (“OCHD”) and worked in one of the two buildings at OCHD’s office campus. Construction began at the building next to where Petti worked. Petti reached out to OCHD’s Director of Administration and Program Development regarding construction debris and asbestos out of concern it could aggravate her unspecified medical condition. OCHD responded that an asbestos sampling survey had been completed and concluded there was no asbestos-containing material at the site. Petti also received a report, conducted at the construction site by an external consultant, indicating that the construction site was free of external debris or other hazards.

Despite these reports, Petti submitted a letter to her supervisor requesting unspecified reasonable accommodations as well as a doctor’s note stating she was to avoid exposure to dust, chemicals, construction materials, and respiratory irritants, due to “pulmonary dysfunction.” OCHD provided Petti with leave under the Family Medical Leave Act (“FMLA”) and while Petti was on FMLA leave, OCHD had additional testing completed for mold. All tests also came back within the normal range. In addition, the Public Employees Occupational Safety and Health Program conducted a full inspection and investigation of Petti’s work area and determined there were no violations of health standards.

OCHD also sent Petti a letter detailing the steps taken to ensure that her workplace was safe and further indicated that her work station was moved. She would be provided with a respirator or particulate dusk mask and “out of an abundance of caution,” an air scrubber would be installed in her department as well. OCHD also requested that Petti meet to discuss the proposed accommodations. Petti did not respond to this offer, claiming the only solution was to transfer to another location. At this point, the District Court and Third Circuit determined the employee caused a breakdown in the interactive process.

Petti filed a lawsuit against OCHD alleging, inter alia, disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”). The District Court granted OCHD summary judgment on Petti’s claims and the Third Circuit affirmed finding that Petti did not state a prima facie case of ADA discrimination based on the claim OCHD failed to provide her requested reasonable accommodations. The Third Circuit determined that communication ultimately broke down when Petti failed to respond to OCHD’s request for a meeting to discuss the proposed accommodations for her, for which OCHD could not be faulted.

This
case emphasizes interactive process required by both the employer and the
employee. A refusal by the employee to
participate and/or refusal to consider only one accommodation could result in a
breakdown of this process leading to dismissal of the employee discrimination
claims under the ADA.

About the Author

About the Author:

Lauren E. Tedesco, Esq. focuses her practice in the representation of public and private sector employers in the areas of labor and employment, school law (including special education) and civil rights law matters. Ms. Tedesco is admitted to practice in New Jersey and Pennsylvania.

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